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Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer

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Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer Loyola University Chicago Law Journal Volume 47 Issue 4 Summer 2016 Article 5 2016 Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer David B. Kopel Follow this and additional works at: https://lawecommons.luc.edu/luclj Part of the Law Commons Recommended Citation David B. Kopel, Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer, 47 Loy. U. Chi. L. J. 1117 (). Available at: https://lawecommons.luc.edu/luclj/vol47/iss4/5 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized editor of LAW eCommons. For more information, please contact [email protected]. KOPEL (1117–1192).DOCX (DO NOT DELETE) 5/2/16 4:20 PM Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer David B. Kopel* This Article provides the first legal biography of lawyer and Senator Lyman Trumbull, one of the most important lawyers and politicians of the nineteenth century. Early in his career, as the leading anti-slavery lawyer in Illinois in the 1830s, he won the cases constricting and then abolishing slavery in that state; six decades later, Trumbull represented imprisoned labor leader Eugene Debs in the Supreme Court, and wrote the Populist Party platform. In between, Trumbull helped found the Republican Party, and served three U.S. Senate terms, chairing the judiciary committee. One of the greatest leaders of America’s “Second Founding,” Trumbull wrote the Thirteenth Amendment, the Civil Rights Act, and the Freedmen’s Bureau Act. The latter two were expressly intended to protect the Second Amendment rights of former slaves. Another Trumbull law, the Second Confiscation Act, was the first federal statute to providing for arming freedmen. After leaving the Senate, Trumbull continued his fight for arms rights for workingmen, bringing Presser v. Illinois to the U.S. Supreme Court in 1886, and Dunne v. Illinois to the Illinois Supreme Court in 1879. His 1894 Populist Party platform was a fiery affirmation of Second Amendment principles. In the decades following the end of President James Madison’s Administration in 1817, no American lawyer or legislator did as much as Trumbull in defense of Second Amendment. Yet Lyman Trumbull had little personal interest in firearms, and never considered the Second * Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law. Research Director, Independence Institute, Denver, Colorado. Associate Policy Analyst, Cato Institute, Washington, D.C. Professor Kopel is the author of eighteen books and one hundred scholarly journal articles, including the first law school textbook on the Second Amendment: NICHOLAS J. JOHNSON, DAVID B. KOPEL, GEORGE A. MOCSARY & MICHAEL P. O’SHEA, FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICY (Vicki Been et al. eds., 2012). Kopel’s website is http://www.davekopel.org. I would like to thank Noah Rauscher for assistance with this Article. 1117 KOPEL (1117–1192).DOCX (DO NOT DELETE) 5/2/16 4:20 PM 1118 Loyola University Chicago Law Journal [Vol. 47 Amendment to be one of his major issues. So how did Lyman Trumbull become the leading Second Amendment lawyer of the time? His lifelong cause was “the poor who toil for a living in this world.” When Trumbull examined America in the nineteenth century, he saw that the rights of the toilers could always be trampled, unless they had the right to arms, individually and collectively. The story of Lyman Trumbull’s career begins in the Age of Jackson and ends with Trumbull’s protégé, William Jennings Bryan, winning the Democratic presidential nomination in 1896. It is a story of a man who changed political parties five times, while holding fast to his fundamental principle of free labor. Even today, “The Grand Old Man of America” continues to shape our understanding of constitutional liberty. INTRODUCTION .................................................................................... 1119 I. AN OVERVIEW OF LYMAN TRUMBULL AND HIS POLITICAL PHILOSOPHY .................................................................................. 1121 II. LAWYER, LEGISLATOR, AND JUDGE ............................................... 1125 A. Trumbull’s Major Anti-Slavery Cases ................................... 1128 1. Slavery in Illinois ............................................................. 1128 2. Kinney v. Cook ................................................................. 1131 3. Sarah v. Borders .............................................................. 1131 4. Chambers v. People ......................................................... 1132 5. Williams v. Jarrot ............................................................. 1133 6. Jarrot v. Jarrot ................................................................. 1134 B. Illinois Supreme Court Justice ............................................... 1136 III. LYMAN TRUMBULL’S SENATE CAREER ......................................... 1137 A. Anti-Nebraska Democratic Senator, Then a Republican. ...... 1137 B. The War of the Rebellion ........................................................ 1140 1. The Corwin Amendment .................................................. 1140 2. Freeing Slaves .................................................................. 1143 3. Protecting Civil Liberties in Wartime .............................. 1144 4. Fighting Big Government ................................................ 1147 C. The Thirteenth Amendment .................................................... 1149 D. Reconstruction ........................................................................ 1150 1. The Freedmen’s Bills and the Right to Arms .................. 1151 2. The Civil Rights Act of 1866 and the Right to Arms ...... 1152 E. Habeas Corpus Again ............................................................ 1155 F. Trumbull’s Split with the Regular Republicans ..................... 1164 1. Impeachment .................................................................... 1164 KOPEL (1117–1192).DOCX (DO NOT DELETE) 5/2/16 4:20 PM 2016] Lyman Trumbull 1119 2. Reforming Big Government ............................................ 1166 3. The 1872 Presidential Election ........................................ 1168 IV. LAWYER FOR THE RIGHTS OF THE WORKINGMAN .......................... 1170 A. Armed Parades and Workingmen .......................................... 1171 B. Dunne v. Illinois ..................................................................... 1176 C. Presser v. Illinois .................................................................... 1179 D. In re Debs ............................................................................... 1181 E. Populist .................................................................................. 1185 CONCLUSION ........................................................................................ 1189 INTRODUCTION Illinois Senator and attorney Lyman Trumbull wrote the Thirteenth Amendment, outlawing slavery in the United States, and giving Congress the power to remove all badges of servitude “by appropriate legislation.”1 The appropriate legislation that Trumbull then introduced was the Civil Rights Act of 1866, the foundational civil rights statute in the United States.2 He also wrote the First Freedmen’s Bureau Bill, to protect the civil rights of freedmen nationally.3 The bills were the first federal legislation to protect Second Amendment rights.4 Later, he brought Second Amendment test cases to the U.S. Supreme Court (Presser v. Illinois5 in 1886) and the Illinois Supreme Court (Dunne v. Illinois6 in 1879). These Second Amendment cases involved labor rights—in particular, the rights of organized groups of workingmen to defend themselves from company goons and other violence. The most famous case of the last part of Trumbull’s career was also a labor case, In re Debs; there, he brought a habeas corpus case to the Supreme Court in support of the labor leader Eugene Debs, who had defied a federal court injunction against continuing to encourage a railroad strike.7 Trumbull was not a particularly “pro-Second Amendment” person. Other rights in the Constitution, such as habeas corpus, interested him much more.8 His legislation and litigation for the Second Amendment 1. U.S. CONST. amend XIII; see infra Part III.C. 2. Civil Rights Act of 1866, ch. 31, 14 Stat. 27. 3. See Freedmen’s Bureau Bill, ch. 90, 13 Stat. 507 (1865); infra Part III.D.1. 4. See infra Part III.D. 5. 116 U.S. 252 (1886). 6. 94 Ill. 120 (1879). 7. In re Debs, 158 U.S. 564, 566 (1895), abrogated by Bloom v. Illinois, 391 U.S. 194 (1968). 8. See infra text at notes 219–34 and Part III.E. KOPEL (1117–1192).DOCX (DO NOT DELETE) 5/2/16 4:20 PM 1120 Loyola University Chicago Law Journal [Vol. 47 were derivative of the great cause to which he was devoted: “a fair chance” for “the poor who toil for a living in this world”—as Clarence Darrow remembered him.9 This Article examines Trumbull’s career as a lawyer and legislator. It pays particular attention to the themes that explain why he became involved in Second Amendment issues. Part I of this Article provides an overview of Trumbull’s political philosophy, as it remained mostly constant from his early days as an Andrew Jackson Democrat to Republican Senator to Populist. Part II then
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